Professor Steven H. Resnicoff
Coercing innocent men and women to confess to crimes that they did not commit was the hallmark of many ancient and oppressive systems of purported justice (1). Alarmingly, similar practices continue to be employed by the police forces of many "modern" nations. By contrast, while admissions of civil liability raise different issues, Jewish law not only forbids coerced criminal confessions but basically bans the use of any criminal confession.
A recent Wall Street Journal (2) front page article chillingly reports that the justice system of Japan, a nation renowned for its technological sophistication, rivals that of Star Trek's Cardassia, where essentially no trial begins until a defendant has been found guilty. Indeed, the conviction rate in Japan is 99.92%, with 92% of all defendants confessing to the crimes of which they are accused.
How is such as astonishingly high rate of confessions achieved? Principally through the psychologically coercive techniques practiced by police, who are permitted to keep a suspect in custody and question him for weeks before filing any charges. Although the state provides an attorney for indigent suspects, it does so only after a formal indictment. Consequently, such counsel customarily arrives only after a confession has already been elicited.
The Wall Street Journal article decries the case of poor Tsuneo Yakushiji. During his interrogation, Mr. Yakushiji was bullied by police who pounded on the table in front of him and cited - but did not let him see or explain - allegedly incriminating evidence in their possession. Concerned that, if he did not confess, the police investigation would engender grave shame to his family and friends, and hopeful that a confession would reduce the harshness of his sentence, Yakushiji was convinced there was simply no viable alternative to admitting his "guilt." But confessing did little to ameliorate his nightmare. After the false confession was induced, Yakushiji endured 13 hopeless, and seemingly interminable, months in jail while awaiting trial and sentencing. Only then - and only by fortuity - was Yakushiji's innocence established. But although Yakushiji was finally released, he bore permanent scars: his health had suffered, he had irreparably lost his job and he had been denied even the opportunity to attend his father's funeral.
In America, where brutal forms of coercion are illegal and, hopefully, rare (3), confessions obtained through psychological pressure and deception are often admissible. Indeed, the unreliable Yakushiji confession itself might have been admissible in the U.S., at least had he received Miranda warnings and been afforded a right to counsel.
By contrast, Jewish law prevents a confession from being used as evidence in a criminal proceeding. A commonly cited basis for this rule is the Biblical verse prescribing that a person is to be convicted of a crime upon the testimony of two witnesses,(5) thereby excluding other types of evidence. Because a party to litigation is ineligible to testify, reliance on the testimony of witnesses bars the use of confessions.
Jewish law scholars have suggested various policy reasons for this Biblical rule. Rabbi Moshe ben Maimon (Maimonides, 12th century), for instance, states that even "voluntarily" proffered confessions lack creditworthiness (5). He says that people who are depressed may long for death and confess to crimes they did not commit so that a court might execute them. Other authorities identify additional reasons why persons may want to incriminate themselves and be "punished."
Of course, the credibility of a confession may also be impaired by purposeful psychological or physical manipulation. This is unlikely in the Jewish legal system, because the Talmud does not even provide for the interrogation of criminal suspects. Secular authorities, however, routinely question suspects and, when doing so, use lies, tricks and promises of leniency - undermining the reliability of any resultant confession.
Rabbi Yosef ibn Migash (Ri Migash, 11-12th centuries) stresses that if confessions were admissible into evidence, courts would be likely to be unduly influenced by the confession, disregarding important evidence that might lead to a finding of innocence (6). Judicial over reliance on a confession is especially troublesome if, as Maimonides argues, a confession is inherently untrustworthy.
Perhaps the most remarkable aspect of Jewish law's treatment of confessions is that not only is it impermissible to force someone to testify against himself, but a person is not even allowed to testify against himself. Rabbi David ben Zimra (Radbaz, 16th century) explains that neither a person's body nor life is his to do with as he pleases. Instead, they are precious, divine gifts. Consequently, a person is not free to forfeit his life - or to incur corporal punishment - by confessing to a crime (7). Instead, a Jewish court must have independent testimonial evidence.
This rule produces two important and interrelated practical benefits. First, the rule spares the Jewish court system the fact-sensitive and time-consuming process of evaluating the "voluntariness" of a confession by examining the circumstances in which the confession was made. Second, the rule largely eliminates any incentive for police to wrongfully coerce a confession and then attempt to convince the court that it was voluntarily made.
There is yet a third, more fundamental distinction between the Jewish and secular approaches. Secular authorities often assert that the constitutional right against self-incrimination reflects the basic sanctity of the individual. Nevertheless, by cynically allowing confessions to be elicited by trick and deception, secular law makes a mockery of such pretensions. Under Jewish law, no ruse changes the rule: a criminal confession is not admissible. Not only is a Jewish criminal defendant presumed innocent, but he may not be duped - or even permitted - to testify against this presumption; he may only be convicted on evidence provided by others.
1. Aaron Kirschenbaum, Self-Incrimination in Jewish Law (New York: Burning Bush Press, 1970), 10-11.
2. Peter Landers, "Second Thoughts: A False Confession Jailed Mr. Yakushiji; Then Fate Intervened," Wall Street Journal (Friday, October 6, 2000), 2000 WL-WSJ 26612299.
3. Nevertheless, such abuses are alleged to have occurred consistently in some police headquarters. See, e.g., Aaron Chambers, "Torture Spurred Confessions, Justices Told," Chicago Daily Law Bulletin, September 14, 1999.
4. Deuteronomy 17:6, 19:15.
5. Mishnah Torah, Sanhedrin 18:6.
6. See Menachem Elon (ed.), The Principles of Jewish Law (1975), at 614.
Steven H. Resnicoff is a law professor at DePaul University College of Law in Chicago. He also holds Rabbinic ordination from the revered Rabbi Moshe Feinstein, of blessed memory.